Just getting the address right is only half the battle, y’all.

A huge hat tip to my friend and fellow law blogger, Ted Folkman, for his Case of the Day post last week about Peanuts Worldwide v. The Partnerships and Unincorporated Associations Identified on Schedule A (N.D. Ill. 1:23-cv-02965).* He very deftly connected the dots between a real, nuts & bolts case and an issue we both rant about, frequently and loudly. I like to think I bring just the right amount (ie: lots) of sardonic humor to my writing, but Ted is the master of the subtle, having penned a pitch-perfect haiku several years ago to illustrate that service by email is just plain wrong in light of the Hague Service Convention perspective— or at least, wrong in what I call “5-O countries“.

Limited methods.
Email is not on the list.
The plaintiff’s sad tears.

The only possible way that electronic service flies in a Hague airspace is if it is (1) considered a postal channel, which is a tenuous conclusion which it has been specifically designated by the Special Commission of the Hague Conference, and (2) the destination country doesn’t object to Article 10(a)’s permissiveness toward postal channels. The bottom line of Ted’s Charlie Brown post was that electronic service is a no-no when the defendant’s address is known to the plaintiff (and it’s in a country that objects to 10(a)). He didn’t come right out and say the judge bungled it, but I will. The Peanuts court was– and every other court that holds similarly is– dead wrong in green-lighting electronic service merely because “the Hague Service Convention doesn’t prohibit it.”

Sure, it doesn’t explicitly or specifically prohibit it, but that’s because email didn’t exist outside the minds of a bunch of scientists at DARPA when the thing was written (1965). The Convention doesn’t prohibit service by carrier pigeon or smoke signals or message-in-a-bottle either, but whatever… In holding that the Convention’s silence as to email service validates it, numerous courts bizarrely and consciously disregard no less an authority than the late Sandra Day O’Connor.

Unbelievably, writes the judge in Peanuts, “(s)imply put, the Court has never held that the Convention prohibits email—or that its listed means of service must be treated as exclusive.”

Except, yeah, the Court did precisely that in Volkswagen v. Schlunk (at 706)!

Those who eschew its procedures risk discovering that the forum’s internal law required transmittal of documents for service abroad, and that the Convention therefore provided the exclusive means of valid service.

Irony of ironies– many of the judges in these cases, including Peanuts, cite Schlunk on background issues, but seemingly don’t read the whole case. It’s truly baffling.

But there’s an even bigger problem with the whole question of suing these online merchants: with only one or two exceptions, the “Partnerships and Unincorporated Associations Identified on Schedule A” aren’t actually identified! If a defendant’s true identity can be pinpointed, the odds skyrocket that its address can be found and, ultimately, that it can be served via Hague channels. But most of these are just impossible as they exist. Here are just a few of the targets on the docket sheet, I would assume drawn directly from their showcases on Amazon or Walmart or AliBaba:

  • Electrician Guy (huh?)
  • Riccu1000 Store
  • Shop1102298440 Store
  • TongLing Metal Tin Store
  • W-AKL Store
  • Wholesale Small items Store
  • A3ASBOPFT71WGM (what?)
  • Nice To Meet You Plush Store
  • Pretty Girls biubiubiu Store (really?!)

None of them show the hallmarks of an actual Chinese company (one of which is the word “Company” or “Co.”). All of these are 99.44% guaranteed to result in Hague failure. They’re just not identified in a way that will get them past the Chinese gatekeepers– and believe me, those gate keepers scrutinize everything.

The Peanuts court spent a fair amount of time chastising the plaintiffs for knowing where “Electrician Guy” is located, but ultimately said e-service was okay anyway. But whatever– I’m suddenly transported back to my law school Corporations class (my alma mater did things right and called it Biz Org, but many don’t), and one of my favorite professors, Big Tony. Big Tony pounded into our brains that if you don’t properly name your defendant, you don’t have a case. That’s been holy writ in the litigation world since Blackstone was a 1L. Don’t call your defendant Dennis when her name is really Denise. Don’t sue Budweiser when Anheuser-Busch is the actual entity at fault (allegedly). Don’t call it a corporation when it’s really an LLC.

In these Amazon/Walmart/AliBaba cases involving Chinese sellers of copyright- or patent-infringing goods– and they’re almost universally cases involving Chinese sellers– it’s critical to recognize that getting a solid address is only half the battle. In my recent post, “Chinese company names, flawed addresses, and the high likelihood of Hague Service failure“, I hit on both sides of a potentially ugly coin. See, the most frequent basis we see for failed Hague requests to China is this:

No such defendant at the address provided.

More than just a tad ambiguous, that. Do we have an incorrectly named defendant? Do we have a bad address? Did we whiff both questions? We’ll never know.

In that “failure” post, I quoted another friend and fellow law blogger, Dan Harris, over at the China Law Blog:**

  • In China, only the Chinese language name has any legal status; as a legal matter, the English is not relevant. This means you can use any English language name you want.

So if you just indicate “Pretty Girls biubiubiu Store” as your defendant in a Hague Service Request, the address is going to be pretty inconsequential. I’m not saying Pretty Girls biubiubiu Store doesn’t actually exist on AliExpress– it unquestionably does (AliExpress is the consumer side of AliBaba). I am saying that you have to dig deeper to find out just who is behind that store. If you don’t, you can forget about effecting valid Hague service.

So here’s the roadmap.

If Amazon/Walmart/AliBaba won’t (or can’t***) tell you, we can investigate the seller. One of three outcomes results:

  1. We successfully identify and locate a different defendant name, so you amend your pleadings, then we translate and initiate Hague Service.
  2. We confirm the name and address you already have, so no amendment is necessary– we just translate everything and initiate Hague Service.
  3. We can’t find any discernible entity or individual behind the goofy seller name, but the diligence you’ve spent provides a solid foundation for a 4(f)(3) motion (electronic service is okay in such an instance because the Hague Service Convention doesn’t apply!) and a takedown order forcing Amazon/Walmart/AliBaba to stop providing a conduit for the infringing goods. And isn’t that the real goal anyway?

Seriously. That distills it all down. None of this is cheap, but a little homework at the beginning goes a very, very long way.


* If you subscribe to this blog and not to Letters Blogatory, repent and correct your wicked, sinnin’ ways, friend.

** If you don’t subscribe to the China Law Blog, ibidum.

*** Seems to me that the online marketplace is part of the problem in such an instance. Full disclosure: I’m a loyal, usually quite happy Amazon customer, and I’m afraid to tally up just how much I’ve spent just loading up my Kindle over the past few years. Never mind the actual merchandise or my Amazon Prime credit card.